Jan. 23, 2013

Written by

The Tennessean

More information about the deaths of children who were known to the Tennessee Department of Children’s Services must be made public, a judge ruled Wednesday.

Davidson County Chancery Court Judge Carol McCoy ordered DCS to release copies of the forms its employees fill out when a child dies.

Those forms will provide more information than DCS has so far provided to The Tennessean, the judge wrote, including more about the cause of death, the department’s prior involvement with children, results of prior contact and services provided to the children who later died.

“DCS has a statutory duty to provide the non-confidential information as an essential function and integral part of its routine duties,” McCoy wrote in a 27-page order.

The ruling came in response to a lawsuit filed Dec. 19 by The Tennessean and a coalition of a dozen other news organizations alleging that DCS violated the law by refusing to provide the records of children who died after being brought to the agency’s attention.

The Tennessean made requests over a three-month period for information about 31 children who died in the first half of 2012 — and regarding 206 children involved in fatal and near-fatal incidents dating back to 2009.

“We’re delighted that the judge took a broad view of openness under the Public Records Act and took into account that our goal, as well as that of the state, is the protection of children in the state’s custody,” said Robb Harvey, the attorney representing the media.

In a statement Wednesday, Gov. Bill Haslam said the state will provide the records that the judge ordered released and said the state has all along sought to protect the privacy of families receiving services from DCS.

“This is not an obligation that we can casually dismiss or ignore when we get a public records request,” he wrote.

Haslam went on to say the state had been prepared to provide more information before the lawsuit was filed, “but wasn’t given the opportunity.”

The Tennessean repeatedly requested records from DCS. When none were provided — the department had instead created new spreadsheets with one-line summaries of incidents, stating DCS prior involvement was “not pertinent” to the deaths — the newspaper set a deadline for DCS to produce more.

On the day of the deadline, state officials offered to sit down with attorney Robb Harvey, who represents the media coalition, to discuss providing more information.

“The plaintiffs wanted all of the files and all of the information, so they chose instead to sue the state,” Haslam wrote.

“The state will not have to provide all of the files and information the plaintiffs demanded,” the statement concludes.

'Exhaustive' ruling

She ordered DCS to provide redacted “referral forms” from those four cases within 10 days. Those forms summarize how a child died and the level of DCS involvement.

In the four files that McCoy looked through, she found DCS employees completed or “partially completed” these forms, and that some were later revised and added to the file multiple times.

In the files, the judge also looked at other records, letters, investigation summaries, autopsies, medical reports, photographs, and hand-written notes, but did not order that those be released.

“The files do not appear to be in chronological order nor are they organized in a meaningful way … that DCS did not have the information readily available becomes apparent upon a review of the four files provided,” the judge wrote.

McCoy said the department must provide an estimate of the time and cost required to produce the death referral forms for the other 200 fatalities and near-fatalities.

She wrote that when a child dies, the department’s “efforts or lack thereof become a key concern.”

The judge ordered identifying information to be redacted from records, including the names of hospitals and schools.

McCoy outlined how state and federal laws make child abuse records confidential in most circumstances, but that other laws require that child death and near-death records, in particular, must be made public.

Harvey called the ruling’s analysis of the law “thorough and exhaustive.”

A similar legal demand for fatality records — in a separate lawsuit — will go before a federal judge on Friday. In that case, a watchdog group asked for similar records.

This is a developing story that will be updated online and in print. Reach Tony Gonzalez at 615-259-8089 or tgonzalez@tennessean.com. Follow him on Twitter @tgonzalez.